My recent column on Gay Marriage in Massachusetts sparked a lot of combustion on the American News forum. One reader, Henryj, addressed to me a rather lengthy epistle. Here is my reply, which may be of interest to our readers.
Dear Henry:
Your long post (ten pages, single spaced, in Microsoft Word)
is too flattering to ignore. I am sorry
I cannot reply in kind, but I do want to make a few points.
First, I think it was a bad idea to begin by insulting your
readers and perhaps me. That approach
may be proper in some cases, but one would have to be very sure of his footwork
to use it. You say this:
For those on this forum who are
lazy readers, go ahead and skip this post, as I do not appreciate your lazy
arguments in favor of shorter posts. If you did your homework elsewhere before
making such ignorant comments on the subject of gay marriage I would not feel
obliged to bother with these long posts, but you don’t do your own homework.
So, I need to at least provide you the information you are too lazy to seek out
elsewhere. And if you disagree with my arguments, search out the truth on your
own. But, please don’t come back to me with prejudicial arguments that have no
basis in fact.
I am not sure whether those words are directed at me, or
just at “lazy readers.” But the
following is directly addressed to me.
In the future, I suggest you do a
bit more historical homework on the subject. The same kind of ignorance and
lack of historical perspective also comes out in your argument about the 14th
Amendment I partly discussed above. Again you need to look at the history of
the 14th Amendment and the cases in which it was utilized for personal rights
and freedoms in America.
In particular it was used against the role states played in the development of
expanding business enterprises in the U.S. and the rights (and property)
certain states allowed businesses to take away from certain parts of its
citizenry.
Another one of its early roles was in the Dred Scot
decision which mandated states to treat all their citizens the same. At the
time of Dred Scot it specifically addressed blacks that did not have the same
rights as U.S.citizens or residents of particular states that whites had been given by the
states. For a particular state to codify or practice a different set of rights
and benefits for one set of citizens that was contrary and different than it
provided for a different privileged set of its citizens, the 14th Amendment
said was unconstitutional.
I would point out that the case you cite is Dred Scott v.
Sandford (not Dred Scot), and it certainly does not incorporate the 14th
Amendment, as the case was decided in 1857, before the Civil War, and the 14th
Amendment comes after the war. The Dred
Scott case declared that freed men could not be citizens of the United States. I think you may have been thinking of Brown
v. Board of Education, or maybe Plessy v.Ferguson,
though I cannot be sure. Moreover, you
use the term “activistic,” where I think you want to say “activist.”
These are minor points, to be sure, and they do not
determine the substance of your case, but someone who neglected to check
materials readily available by Google might want to avoid accusing others of
ignorance and laziness.
As to issues of substance, you write:
You continue to use the rhetoric
and tone perpetuated by the religious right in their arguments against same-sex
civil marriages. Why would you use planks of their arguments against same-sex
marriage if you were in favor? It makes no sense. For instance, you say same-gender marriage is
not required under the Constitution. Here’s a newsflash for you. NEITHER is
heterosexual marriage.
I reply that when I agree with you, that gay marriage is the
right policy, I say so. When I agree
with someone else, that gay marriage is not required by the Constitution, I say
that. To say that an argument is invalid because of who uses it, that would be
a classic ad hominem, a logical fallacy. As for your “newsflash,” I scooped you. I note in my column that the definition of marriage is not contained in
the Constitution, but is sensibly left to the states. Maybe you missed that.
The heart of our disagreement is indicated in this paragraph
of yours:
Despite your statement, the constitutional right to
same sex marriage was not invented by Massachusetts.
That is a statement that has no basis in fact and is solely an opinion. If you
believe that statement, you do not believe gays anywhere have any right to
marriage. Surely there are far better arguments for same-gender marriage than
it being invented by Massachusetts
To the contrary, my statement has every basis in fact. Constitutions mean in the first place what
they explicitly say. In the second
place, we look to the tradition of interpretation in the courts and
legislatures, and lastly comb the record of the persons who enacted the
constitution. There are no grounds in
any of these sources for a right to gay marriage, either on the Federal level
or in any state. By contrast, it is
clear from the language and legislative history of the Civil War amendments
(13-15), that freed persons were to be given the full rights of
citizenship.
I think you recognize this in your insistence on judicial
activism.
The courts also need to be
activistic in that they bring to the forefront those issues of injustice that
have failed to be remediated in line with the Constitution by the other two
branches. Since neither the Legislative Branch, nor the Administrative Branch
at the state or federal levels are seeking to remediate injustices done to GLBT
citizens, it becomes the rightful place of the courts to do so.
You want the courts to override the more democratic branches
and write your political preferences into the text of fundamental law. I think this is short sighted. Imagine a court where five or six of nine
believe that abortion is a violation of human rights. Should they declare abortion to be illegal in
all the states, since “neither the Legislative Branch nor the Administrative
Branch at the state or federal levels are seeking to remediate
injustices”? Though I vehemently believe
abortion to be wrong, I don’t believe that unelected judges should try to do
any such thing.
The substance of your argument, and it does have substance,
is that gay marriage is analogous to civil rights issues. I think this is flat wrong. Segregation divided citizens into discrete
and insular groups. It inequitably distributed
rights among them, and sought to keep them apart. Traditional marriage laws apply equally to
all persons. No man can marry another
man, whether he be black, white, heterosexual, or homosexual, just as no man
can marry his sister, or any two men some third person. Moreover, bans on gay marriage certainly do
not attempt to segregate homosexuals, since homosexual marriage does not
involve “commingling,” as it was put in Plessy, between homosexuals and
heterosexuals.
Your arguments, passionate and detailed to be sure, only add
up to the fact that you want the courts to override the political branches,
much as if a Cubs fan wanted the umpires to fix it so that their team could
finally win.
Homosexual marriage would be a novelty. I think we should extend the institution of
marriage to homosexuals because it would be good policy and, I suppose, good
for the institution of marriage. But I
think we should achieve that goal the old fashioned way, by earning it. I think such a process would be better for
the public as a whole, and perhaps better for the homosexual community.
Recent Comments